Amicus Committee

NAPD’s Amicus Committee supports critical issues facing public defenders, assigned counsel, and their clients before the state and federal courts by filing amicus briefs at the request of counsel and approval of the Committee. H. Louis Sirkin, one of the nation's preeminent First Amendment and criminal defense attorney and Of Counsel with Santen & Hughes, and Janet Moore, former public defender and Professor at the University of Cincinnati Law School, co-chair the Committee. Members seek opportunities for amicus contribution and participate in brief writing as needed. The Committee meets on an as-needed basis and is looking for good researchers and writers to assist. Contact Heather H. Hall if you are interested in being part of the NAPD Amicus Committee.

Thus far, the Amicus Committee has submitted briefs in the following cases:

Case: Henry v. City of Mt. Dora, SCOTUS Docket No. 17-652, petition for writ of certiorari to United States Court of Appeals (11th Cir., No. 15-11351)Filed: November 26, 2017Author and Pro Bono Counsel: Gerald J. Gleeson, III & Irene Hathaway, Miller Canfield, LLPIssue: (1) Does the Court’s decision in Heck v. Humphrey bar actions under 42 U.S.C. § 1983 when the writ of habeas corpus was not available as a collateral attack on a state judgment, and (2) Does a juvenile adjudication noting a violation of a criminal statute constitutes a criminal conviction triggering the Heck v. Humphrey bar when state law expressly states that juvenile adjudications are not criminal convictions, and juveniles are not afforded basic constitutional protections required for criminal proceedings?Outcome: Pending

Case: Walker v. City of Calhoun, Georgia(11th Circuit Court of Appeals, No. 17-13139)Filed: November 20, 2017Author and Pro Bono Counsel: Bradley RobertsonIssue: Is a bail system that detains 40 percent of all those arrested only on misdemeanor charges, many of whom are indigent and cannot pay the amount needed for release on secured money bail, constitutional?Outcome: Pending

Case: Byrd v. US, merits stage, SCOTUS Docket No. 16-1371; reviewing 3d. Cir. docket no. No. 16-1509Filed: November 20, 2017 (NAPD brief supporting cert petition filed June 12, 2017)Issue: Does a driver have a reasonable expectation of privacy in a rental car when he has the renter's permission to drive the car but is not listed as an authorized driver on the rental agreement. Author and Pro Bono Counsel: Lochlan Shelfer, Gibson, Dunn & Crutcher LLP Outcome: In a unanimous decision, the United States Supreme Court reversed the lower court's decsion and affirmed privacy rights and protections for persons in renatl vehicles, consistent with the NAPD amicus (ruling published May 14, 2018). You can read the ruling HERE

Case:O'Donnell v. Harris County, Texas,H-16-1414, United States Court of Appeals (5th Cir.)Filed: August 9, 2017Author and Pro-Bono Counsel: Brad Robertson, Bradley Arant Boult Cummings, LLPIssue: Is Harris County's bail system which detains 40% of all misdemeanor defendants, many of whom are indigent and have no ability to pay, constitutional?Co-Amici: Pre-Trial Justice Institute (lead author) and National Adult Proitective Services AssociationOutcome: Pending

Case:Byrd v. US, No. 16-1509 (3rd Cir.)Filed: June 12, 2017Author and Pro-Bono Counsel: Lochlan Shelfer, Gibson, Dunn & Crutcher LLPIssue: Did the District Court err in concluding that: (1) the police had sufficient grounds to stop Appellant because he drove in the passing lane at or below the speed limit for two tenths of a mile while passing a tractor trailer; (2) the police had a sufficient basis to prolong the roadside detention of him while ostensibly verifying his identity; and (3) the police could search the vehicle because he did not have standing to object?Outcome: Cert granted. Case: New Mexico v. Lopez, No. D506 CR 2016-867 (5th Judicial District Court of Appeals)Filed: June 5, 2017Author: Glover Wright, NAPD Amicus CommitteeIssue: Does systematic underfunding of the public defense function violate the right to counsel?Outcome:Arguments 7/26/17; relief denied 10/11/17

Case:Grubbs v. Brown, No. 92-cv-2132 (SDNY)Filed: April 17, 2017Authors and Pro Bono Counsel: Umer Ali, Hillary Klein and Brenna Rabinowitx, Freshfields Bruckhaus Deringer US LLPIssue: Should defendants be held in contempt for violating court order proscribing presence and use of video cameras in Staten Island jail attorney-client conference rooms due to unconstitutional invasion of attorney-client communication and relationship?Outcome: Unfavorable. You can read the ruling HERE

Case:Aksu v. California, Petition to SCOTUS for cert to review 2d Crim. No. B277896 (Cal Ct. App. Oct. 20, 2016)Filed: April 14, 2017Author: Nixon PeabodyIssue: Is standard of review for alleged Fourth Amendment violation of right to be free from searches without voluntary consent de novo or a mixed question of fact and law?Outcome:Denied 10/2/17

Case: Brown v. Bowersox (16-6474), petition for SCOTUS writ of certiorariFiled: November 17, 2017Author: Marsha L. Levick, Riya Saha Shah, Juvenile Law CenterIssue: 1) Is there a constitutional right to sentencing in a court of law, such that relinquishing absolute sentencing authority to the parole board in a Miller-Montgomery case violates the Fourteenth Amendment’s Due Process Clause, and the Sixth Amendment’s Right to Counsel, Right to Public Trial, and Right to Jury Clauses? 2) Does the continued imposition of a life without parole prison term, plus ninety consecutive years, for a fifteen-year-old child who did not personally kill, was unarmed during the store robbery, and did not engage in any act of physical violence towards the decedent, violate the Eighth and Fourteenth Amendments’ prohibition against cruel and unusual punishment? 3) Does the continued imposition of a life without parole prison term, plus ninety consecutive years, upon a fifteen-year-old child who was following orders of an adult during a robbery that resulted in death, violate the Eighth and Fourteenth Amendments’ prohibition against cruel and unusual punishment? Co-Amici: Juvenile Law Center, MACDLOutcome:Denied 1/9/17

Case:Christenson v. U.S., Nos. 08-80531 and 10-50472 (9th Cir.), petition for SCOTUS writ of certiorariFiled: November 7, 2016Author: Igor V. Timofeyev, Partner, Paul Hastings LLP, for NAPD Issue: Does the Sixth Amendment guarantee of a unanimous verdict by an impartial jury (a) preclude a court from removing a juror during deliberations when the record discloses any possibility that the removal request stems from the juror’s views on the merits of the case and (b) preclude a court from questioning the jury when faced with allegations of juror misconduct that could be related to the merits? Further, as the plain text provides, does Title III require suppression of all recordings made for the purpose of committing a criminal or tortious act?Outcome: Denied 1/9/17

Case: Kevin Bridgeman, et al. v. District Attorney for the Suffolk District, et al., Massachusetts Supreme Judicial Court No. SJC-12157Filed: October 24, 2016Author: Patricia Dejuneas, with assistance from Carlton Fields, Sylvia Walbolt, Nicholas A. Brown, and Carolyn BartowIssue: Where rogue forensic analysis tainted the evidence in thousands of low-level drug cases, does due process or the exercise of the Court’s superintendence authority require all of those convictions to be dismissed with prejudice or with limited leave to refile within one year upon certification of sufficient untainted evidence to prove guilt beyond a reasonable doubt? Outcome: Within 90 days prosecution must (a) identify convictions that they (i) move to dismiss with prejudice or (ii) dismiss for retrial with untainted evidence and (b) notify defendants fully of their rights, including rights to appointed counsel; cases may also be dismissed if CPCS is unable to assign counsel for all eligible defendants (consistent with NAPD's amicus argument!).

Case:U.S. v. Serrano-Mercado, (16-237), cert to the Supreme Court of the United States (from 1st Circuit Court of Appeals)Filed: September 23, 2016Author: Dorothy Heyl, Milbank Tweed Hadley & McCloy LLP for NAPDIssue: Does the government or the defendant bear the burden of proof on appeal for a defaulted claim of sentencing error based on the misclassification of a prior as a crime of violence for purposes of sentence enhancement? Outcome:Denied 1/17/17

Case: Office Of The Public Defender, Eleventh Judicial Circuit Of Florida, v. Milena Lakicevic (3D15-2084), Third District COA of FloridaFiled: August 1, 2016Author: Lawrence Fox, Ethics Bureau at Yale, for NAPDIssue: Can a public defender be forced to disclose contact information for former client to civil plaintiffs suing for damages allegedly incurred during incident that led to criminal charges for which public defender represented former client?Co-Amici: Ethics Bureau at Yale, FACDL, U of Miami School of Law Center for Ethics & Public ServiceOutcome: A win!Case:State v. Beasley, Supreme Court of Ohio(Case No 2016-1020), Ohio Court of Appeals, First Appellate DistrictFiled: July 11, 2016Author: David Singleton, Ohio Justice & Policy Center for NAPDIssue: Does counsel’s unopposed reconstruction of in-chambers conference with judge and prosecutor preserve issue of judge’s blanket policy to deny no-contest pleas and defendant’s objection to entering guilty plea that eliminated right to appeal judge’s ruling on motion to suppress?Outcome: Decided January 4, 2018, a win! opinion consistent with NAPD arguments.

Case:Elijah Manuel v. City of Joliet, Illinois, Et Al. (No. 14-9496), United States Supreme CourtFiled: May 9, 2016Author: Timothy P. O’Toole, Miller & Chevalier Chartered for NAPDIssue: Will the Court interpret the Fourth Amendment to permit malicious prosecution claims as a remedy for all of the many harms that result directly from the unreasonable seizure of individuals after the initiation of legal process, but without probable cause?Outcome: Decision on 3/21/17:
In agreement with the NAPD position, the court ruled that people can challenge their pretrial detention on the grounds that it violated the Fourth Amendment.

Case:Thomas Kelsey v. State of Florida(No. SC 15-2079), Supreme Court of FloridaFiled: January 19, 2016Authors: Paolo Annino and Justin Karpf, Public Interest Law Center, Marsha Levick, Juvenile Law CenterIssue: What constitutes lengthy term of year sentences for juveniles in Florida?Outcome:Resentencing ordered 12/8/16. Supreme Court of Florida “made clear that Graham does indeed apply to term-of-years sentences,” and “declined to require that such sentences must be ‘de facto life’ sentences for Graham to apply.” Furthermore, the Court held that “juveniles who are serving lengthy sentences are entitled to periodic judicial review to determine whether they can demonstrate maturation and rehabilitation.”

Case:Luna Torres v. Lynch (No. 14-1096), cert to SCOTUSFiled: August 25, 2015Authors: David Debold, Gibson, Dunn & Crutcher LLPIssue: Does a state offense constitute an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks?Outcome: Conviction affirmed, 136 S. Ct. 1619 (May 19, 2016)

Case:Nguyen v. North Dakota, 14-973, cert to SCOTUSFiled: April 22, 2015Author: Mark T. Stancil, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLPIssue: Do people who live in apartments in locked apartment buildings enjoy the same privacy protections respecting their homes as people who live in single-family dwellings?Co-Amici: NACDLOutcome: Denied Writ of Certiorari 6/29/15

Case: Re: Office of the Hinds County Public Defender (No. 13-M-00397), Supreme Court of MississippiFiled: March 24, 2015Author: John P. Gross, University of Alabama School of Law and NAPD Amicus Committee MemberIssue: Can a trial court judge select which deputy public defenders may appear in his or her courtroom?Outcome: Once a county has created a public defenders office, state law requires that a judge appoint that office to represent an indigent defendant absent a conflict of interest; the trial court's claims regarding the competency of the assistant public defender assigned to the judge's courtroom are unpersuasive (consistent with NAPD's amicus argument!)

Case: Bright v. Galilla County(No. 14-877), United States Supreme CourtFiled: February 16, 2015Author: Jennifer M. Kinsley, Northern Kentucky University Salmon P. Chase College of Law and NAPD Amicus Committee MemberIssue: Do public defenders retain First Amendment rights in their motions and pleadings, such that they cannot be terminated from government employment when the court dislikes their arguments and removes them from representing indigent clients?Outcome: Denied Writ of Certiorari 3/23/15

Case: Angelica C. Nelson v. Wisconsin (No. 14-555), United States Supreme CourtFiled: Dec. 15, 2014Author: Bruce E. Yannett, Debevoise & Plimpton LLPIssue: In Rock v. Arkansas, 483 U.S. 44 (1987), the United States Supreme Court held that a criminal defendant has a constitutional right under the Fifth, Sixth, and Fourteenth Amendments to “take the witness stand and to testify in his or her own defense.” However, is the denial of this right structural error or is it subject to harmless error analysis?Outcome: Denied Writ of Certiorari 3/30/15

Case: Grassi v. Colorado (No. 14-5963), United States Supreme CourtFiled: October 15, 2014Authors: Jeffrey T. Green, NACDL and Timothy P. O’Toole, Miller & Chevalier Chartered for NAPD.Issue: Does the Fourth Amendment permit a police officer to conduct a search or seizure when neither that officer, nor any officer in the chain of command, possesses the requisite amount of suspicion necessary to justify the search or seizure under the Fourth Amendment?Outcome: Denied Writ of Certiorari 11/17/14

Case: United States v. Rodriguez-Vega(No. 13-56415 ), 9th Circuit Court of AppealsFiled: August 14, 2014Authors: Rebecca Sharpless, Immigration Clinic of the University of Miami School of Law and Sejal Zota, National Lawyers GuildIssue: Does proper construction of Padilla v. Kentucky require defense counsel must do more than merely advise noncitizen clients of possible deportation when deportation is virtually certain? Outcome: Defense counsel’s failure to inform the accused of virtual certainty of removal prior to her guilty plea amounted to deficient performance. The conviction was vacated and remanded.

NAPD News

January 23, 2018: In response to US Attorney General Jeff Session's reversal of prior policy on the imposition of fines and fees for criminal defendants, NAPD submitted the following letter on behalf of the public defender community. You can read the letter HERE
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January 17, 2018: The 2018 NAPD Investigators Conference and 2018 Social Workers & Sentencing Advocates Institute (March 26-29, 2018 in Denver, CO) are now at full capacity and closed for registration. A wait list is being developed.
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November 28, 2017: NAPD has uploaded videos of the presentations from the 2017 NAPD Workloads Conference in St. Louis (held November 17-18). Members can access these valuable presentations on MyGideon by logging into their NAPD account.
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April 16, 2017: 60 Minutes' Anderson Cooper features the Orleans Public Defenders and NAPD General Counsel in a substantive segment about public defenders' excessive workloads, pervasive injustice, and the obligation of defenders to resist the "conveyer belt" of mass-incarceration. You can watch the compelling segment HERE
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On March 18, 2017 - the 54th anniversary of the Gideon v. Wainright decision - NAPD published its Foundational Principles, which are recommended to NAPD members and other persons and organizations interested in advancing the cause of equal justice for accused persons.

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